Wechuli v Republic

a. This court be pleased to issue a declaration that indeterminate life imprisonment is unconstitutional in so far as it violates Articles 28 and 29 (d) of the Constitution by failing to give regard to not only his dignity as a human being but also subjects him to inhuman and degrading treatment. b. This Honourable Court be pleased to issue a declaration that the Petitioner’s right is threatened so far as serving the sentence for the rest of his life in prison without consideration of rehabilitation is disproportionate. c. This Honourable Court orders that the Petitioner is fit to serve a term of years considering his mitigation as provided under Section 216 and 329 of the Criminal Procedure Code. d. An order, in the alternative, for revision of the Petitioner’s case in the interest of justice. e. The Court be pleased to make further such other order(s) as it shall deem just. 2. The Petitioner avers that he was charged with murder contrary to Section 203 as read with Section 204 of the Penal Code vide Criminal case No.104 of 2013 at Nairobi. After his conviction and subsequent sentence to suffer death, he preferred an appeal being Criminal Appeal No. 16 of 2021 which was dismissed for lack of merit. 3. Having exhausted his appellate right, he now proffers this petition contesting the commuted life sentence imposed against him to be harsh, inhuman and degrading therefore violating his right to dignity and free from inhuman and degrading treatment. 4. He further contends that the imposition of indeterminate sentences of life imprisonment which is devoid of judicial input violates his right under Article 50 of the Constitution. 5. This Honourable Court gave directions that the Petitioner files rehabilitation certificates, and he duly complied by filing the same together with a report of Rev. Julius Sigei, the Assistant Director, chaplaincy at Kamiti Protestant Church, Kamiti Main Prison. 6. It is represented in the report that the Petitioner has exhibited a positive response to the rehabilitation programs provided within the institution. Further, the report states that the Petitioner has undergone extensive and specialized training in multiple disciplines, including leadership and the facilitation of services to fellow inmates, and has completed various courses in religious studies. 7. Furthermore, it is represented that the Petitioner is industrious, operates effectively with minimal supervision, and demonstrates resourcefulness, having established himself as deserving of support and reintegration . 8. The Prosecution did not file a response and neither did it file its submissions. 9. The petition was canvassed by way of written submissions which were duly filed by the Petitioner Petitioner’s Submissions 10. The Petitioner filed his written submissions dated 12th March, 2025. It is submitted that the life sentence imposed on the Petitioner infringes the constitutional guarantees of human dignity and proportionality, particularly in light of his status as a first-time offender and his participation in over eleven years of rehabilitation since 20th October 2013. The Petitioner contends that sentencing is a discretionary judicial function, which must be exercised in accordance with evidential considerations and sound legal principles as provided under Sections 216 and 329 of the Criminal Procedure Code. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18253/eng@2025-11-27 2

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Reliance is placed on the decision in Arthur Muya Muriuki v Republic (2015) eKLR concerning the proper exercise of judicial discretion. 11. On this basis, the Petitioner urges this Court to re-evaluate the sentence, asserting that it is manifestly excessive for failing to adequately consider mitigating factors and the prospects for reform. Further reliance is placed on Republic v Jagagi & Another (2001) eKLR 590 regarding the objectives of sentencing, as well as the pronouncements of Mativo J. in Consolidated Petition No. 97 of 2021, Edwin Wachira and 9 Others v Republic (Mombasa), wherein mandatory minimum sentences were declared discriminatory under Article 27 of the Constitution, thereby permitting the consideration of mitigation and resentencing. 12. In relation to the broader circumstances of the case, the Petitioner invokes Vinter and Others v United Kingdom (Application Nos. 66069/09, 130/10, and 3896/10) to submit that continued detention must remain justified by legitimate penological objectives and be subject to periodic review. The Petitioner further relies on Article 10(3) of the International Covenant on Civil and Political Rights, which underscores the evolving jurisprudence emphasizing rehabilitation as a central aim of punishment and mandates that the penitentiary system should facilitate reformation and social reintegration. In support, the Petitioner also refers to S v Jansen (1999) 2 SACR 368 (C) at 373, arguing that inflexible mandatory sentencing regimes fail to account for individual circumstances, risk disproportionate outcomes, and infringe upon the constitutional right to human dignity. 13. The Petitioner urges this Court to grant the relief sought and afford him a second opportunity to reintegrate into society and reunite with his family. Analysis and Determination 14. Having carefully considered the Petition, the accompanying affidavits, and the respective submissions of the parties, the central issue for determination is whether the Petitioner should be granted a finite term of imprisonment in lieu of the life sentence. 15. The Petitioner has approached this Court seeking a declaration that the indeterminate life sentence imposed upon him is unconstitutional, contending that it infringes his rights to dignity and freedom from inhuman or degrading treatment. He further seeks that his mitigating circumstances be duly considered and that an order of revision be granted. 16. The Petitioner has also invoked the revisional jurisdiction of this Court, which empowers it, in appropriate circumstances, to review, vary, or set aside any order, decision, or sentence of a trial court where such order, decision, or sentence is found to be illegal, irregular, or vitiated by error or impropriety. Where the Court is so satisfied, it is mandated by law to make such orders as may be necessary to correct the impugned decision and ensure compliance with the law. This is the clear import of Sections 362 and 364 of the Criminal Procedure Code. 17. I have examined the averments of the Petitioner regarding the life sentence and whether it infringes constitutional provisions guaranteeing the right to dignity and the principle of proportionality in sentencing. 18. The Petitioner contends that the imposition of life imprisonment in his case is indeterminate and, as such, constitutes cruel, inhuman, or degrading treatment, contrary to his right to dignity. He further avers that the sentence infringes Article 26 of the Constitution, which guarantees the right to life. 19. Regarding the life sentence imposed by the trial court, the Supreme Court of Kenya in Francis Karioko Muruatetu & Another v Republic [2017] eKLR considered the alleged unconstitutionality of indeterminate life sentences. The Court deliberated on two principal questions: whether an https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18253/eng@2025-11-27 3

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indeterminate life sentence is unconstitutional, and whether the Court should prescribe a definite term of years for such a sentence, subject to remission rules. The petitioners argued that indeterminate life imprisonment contravenes Articles 28 (right to dignity) and 29(d) and (f) of the Constitution (protection from physical or psychological torture and from cruel, inhuman, or degrading treatment), and fails to provide avenues for judicial review. The second petitioner further contended that such a sentence, devoid of judicial input, infringes Article 50 of the Constitution (right to a fair trial). The Court, however, found that the petitioners had not sufficiently argued or substantiated the particulars to warrant a declaration of unconstitutionality, and therefore refrained from determining the matter. The Court also acknowledged the absence of specific legislative provisions regarding life imprisonment and deferred to Parliament to define the parameters, including minimum terms or conditions for parole, while emphasizing rehabilitation alongside retribution and public protection as central sentencing objectives. 20. In the instant case, the Petitioner invokes various constitutional provisions, including Articles 22, 25, 26, 27, 28, 29, and 50, asserting that his life sentence is unconstitutional on grounds that it violates his right to dignity, constitutes inhuman and degrading treatment, and infringes his right to life. 21. In Julius Kitsao Manyeso v Republic (Criminal Appeal 12 of 2021) [2023] KECA 827 (KLR), the Court of Appeal declared the mandatory indeterminate life sentence unconstitutional, holding as follows: “ …we are of the view that the reasoning in Francis Karioko Muruatetu & Another v Republic [2017] eKLR equally applies to the imposition of a mandatory indeterminate life sentence, namely that such a sentence denies a convict facing life imprisonment the opportunity to be heard in mitigation when those facing lesser sentences are allowed to be heard in mitigation. This is an unjustifiable discrimination, unfair and repugnant to the principle of equality before the law under Article 27 of the Constitution.” 22. Similarly, in Criminal Appeal No. 22 of 2018, Evans Nyamari Ayako v Republic, the Court of Appeal in Kisumu held that life imprisonment constituted cruel and degrading treatment on account of its indeterminate nature. The Court reduced the Respondent’s life sentence to thirty (30) years, to be served from the date of arraignment, 18th July 2011. 23. The Director of Public Prosecutions (hereinafter referred to as the DPP), aggrieved by the above decisions, filed Petitions to the Supreme Court challenging the Court of Appeal’s action of prescribing fixed terms of 40 and 30 years for life sentences. The DPP contended that it was the Legislature’s prerogative to define the duration of life imprisonment and that the Court of Appeal lacked jurisdiction to declare the sentence unconstitutional. 24. The Supreme Court, in Petition No. E013 of 2024, Republic v Manyeso [2025] KESC 16 (KLR), held as follows: “ Paragraphs 11 to 14 of the Muruatetu directions clarify that the decision did not invalidate mandatory or minimum sentences prescribed in the Penal Code, Sexual Offences Act, or any other statute. The Muruatetu case does not authorize a blanket declaration that all statutory minimum sentences are inconsistent with the Constitution. Paragraphs 93 to 97 further provide that it is not for the court to define what constitutes a life sentence. While a life sentence may entail a certain minimum or maximum duration, this is a matter for the Legislature. We recommend that the Attorney General and Parliament develop legislation https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18253/eng@2025-11-27 4

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on the definition of life imprisonment, including minimum years before parole or remission, or provisions for whole life sentences, consistent with the objectives of sentencing.” 25. The Supreme Court concluded that the Court of Appeal had erred in finding life imprisonment unconstitutional and misapplied the Muruatetu decision. 26. Likewise, in Republic v Ayako [2025] KESC 20 (KLR), the Supreme Court reiterated that Article 94 vests Parliament with legislative authority, including prescribing the parameters of sentences. The Court held that judicial imposition of term sentences as a substitute for life imprisonment, without legislative sanction, was ultra vires and lacked legitimacy. The Supreme Court emphasized that while sentencing is a judicial exercise, Parliament determines the statutory framework, and any declaration of unconstitutionality must adhere to public law principles rather than private discretion or sentiment. 27. In light of the above authorities, it is manifest that the Supreme Court has spoken with finality: until Parliament enacts legislation redefining life imprisonment, a life sentence remains a lawful and valid sentence under the law. 28. In view of the foregoing, it is apparent that the Legislature has not amended the law despite recommendations by the Supreme Court. Furthermore, under Article 165(3)(d) of the Constitution, the High Court is mandated to interpret the law, and the legality of life imprisonment has not been formally determined by the High Court. The Supreme Court explicitly faulted the courts below it for arbitrarily prescribing a term of thirty (30) years, noting that the matter was not properly before that Court. 29. It is therefore my finding that the Petitioner has been serving a lawful life sentence. The Petitioner was charged with the offence of murder, for which the prescribed sentence is death, later commuted to life imprisonment. This sentence was affirmed by the Court of Appeal. The Petitioner has served eleven years and is now completing twelve years of imprisonment. 30. I have perused and considered the rehabilitation report and the annexed certificates evidencing the courses the Petitioner has undertaken while in custody. The report reflects a positive trajectory, and the Petitioner has demonstrated significant personal reform. Notwithstanding this commendable progress, given that the sentence imposed is lawful pursuant to the Supreme Court’s decisions cited above, this Court lacks jurisdiction to substitute the life sentence with a determinate term. 31. The sentence of life imprisonment, therefore, remains lawful, valid, and constitutional. 32. It is my finding that the Petition is without merit and is hereby dismissed, with no order as to costs. Orders accordingly. File closed accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 27TH DAY OF NOVEMBER 2025. BAHATI MWAMUYE MBS JUDGE In the presence of: Petitioner – Mr. Geoffrey Wanjala Wechuli present at Kamiti Maximum Counsel for the Respondent – Mr. Achochi hb Mr. Kinuthia Court Assistant – Ms. Lwambia https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18253/eng@2025-11-27 5

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